AUSTRALIA Law and Practice Contributed by: Kerri Phillips, Matthew Levy and Cassandra Bennett, Phillips Levy Bennet Legal
do so. A child’s relationship with their sibling will be a relevant consideration for the court and would typi - cally be considered by an expert, including the impact of any separation upon their relationship. 2.3.5 Loss of Contact The court must have regard to the benefit to the child of having a relationship with both parents, where it is safe to so, when determining a dispute involving a proposal to relocate. This means that loss of contact with the non-relocating parent will be an important factor for the court. The factors that impact upon this include: • whether any arrangements for telephone or video communication are workable, in light of the child’s age, their relationship with the non-relocating par - ent and the relationship between the parties; • whether the relocating parent has been supportive of the child’s relationship with the non-relocating parent; • the current relationship between the parents and their ability to communicate regarding the child; • whether either or both of the parents could meet the expense of future travel; • the practicalities of any travel arrangements, including the distance involved; • whether the non-relocating parent could travel to see the child where they live (including meeting any visa requirements); and • issues around safety and family violence. 2.3.6 Which Reasons for Relocation Are Viewed Most Favourably? Every case is different. Generally speaking, a parent’s application to relocate is more likely to be successful if the court is satisfied that said parent (usually the primary caregiver) will be better placed to care for the child in the other country because of: • family violence; • limited family and/or social support in Australia; • the impact on their mental health and functioning if they remain in Australia; • limited employment opportunities or financial sup - port in Australia; • the impact on the parent’s or child’s health or access to medical care; or
• the ability of the parent to remain in Australia because of immigration issues. 2.3.7 Grounds for Opposition to Relocation A parent does not need to establish any particular “ground” in order to oppose the other parent’s appli - cation to relocate. If a parent does not agree to the relocation, they will need to put forward an alternate proposal to the court, which they consider to be in the child’s best interests. If a non-relocating parent can demonstrate that the child would benefit from having a relationship with them but that is unlikely to happen if the child relo - cates because of the matters set out in 2.3.5 Loss of Contact , the court may be sympathetic to their posi - tion. 2.3.8 Costs of an Application for Relocation Several aspects impact on the cost of an application for relocation, including the following. • Whether either or both of the parties are eligible for a grant of Legal Aid (state and territory-based services that provide free legal services, subject to eligibility requirements). If they are not eligible for Legal Aid, they will need to represent themselves or pay a lawyer to represent them. • Whether the parties are required to pay court fees, including filing fees, hearing fees and fees for issu - ing subpoenas. In some circumstances, a party may be exempt from paying court fees. • Whether expert evidence is required, the nature of the evidence and whether the parties need to meet the costs. In some cases, the court will make an order for a Court Child Expert appointed by the Court Children’s Service to prepare a report. If a Court Child Expert is appointed, the parties will not need to pay the costs. However, if the parties are able to meet the fees of an expert, the costs will usually be shared. • Parties are required to engage in alternative dis - pute resolution prior to commencing proceedings, unless exceptional circumstances exist. There may be costs associated with this. • Where the court appoints an ICL to represent the interests of the child, the parties will usually be responsible for sharing the fees (unless they have
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